Neutral Citation: 2005 ONFSCDRS 150

FSCO A03-000642

BETWEEN:

ZAHRA GAROUSPOUR

Applicant

and

PEMBRIDGE INSURANCE COMPANY

Insurer

REASONS FOR DECISION

Before:

Anne Sone

Heard:

October 4 and 5, 2004, at the offices of the Financial Services Commission of Ontario in Toronto.

Final written submissions were received on November 17, 2004.

Appearances:

Khalil Ismaeli for Mrs. Garouspour

Darrell March for Pembridge Insurance Company

Issues:

The Applicant, Zahra Garouspour, was injured in a motor vehicle accident on November 8, 2001. She applied for and received statutory accident benefits from Pembridge Insurance Company ("Pembridge"), payable under the Schedule.¹

The issues in this hearing are:

Is Mrs. Garouspour entitled to receive a medical benefit for treatment by Dr. Komeilinejad, in the amount of $3,267.50, claimed pursuant to section 14 of the Schedule?
Is Mrs. Garouspour entitled to payments for housekeeping and home maintenance services, pursuant to section 22 of the Schedule?
Is Mrs. Garouspour entitled to payment for a Functional Capacity Evaluation, in the amount of $1,100, claimed pursuant to section 24 of the Schedule?
Is Pembridge liable to pay Mrs. Garouspour's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mrs. Garouspour liable to pay Pembridge's expenses in respect of the arbitration under section 282(11) of the Insurance Act.
Is Mrs. Garouspour entitled to interest for the overdue payment of benefits pursuant to section 46(2) of the Schedule?

A claim for attendant care was withdrawn on the first day of the hearing.

Result:

Mrs. Garouspour is entitled to receive a medical benefit of $598, pursuant to the first treatment plan of Dr. Komeilinejad.
Mrs. Garouspour is entitled to receive a medical benefit of $75 pursuant to the second treatment plan of Dr. Komeilinejad.
Mrs. Garouspour is not entitled to payments for housekeeping and home maintenance services.
Mrs. Garouspour is not entitled to payment for a Functional Capacity Evaluation.
Mrs. Garouspour is entitled to interest on the medical benefit outstanding of $598, pursuant to the first treatment plan of Dr. Komeilinejad, at the rate of 2 per cent per month compounded monthly, from February 22, 2002.
Mrs. Garouspour is entitled to interest on the medical benefit outstanding of $75 pursuant to the second treatment plan of Dr. Komeilinejad, at the rate of 2 per cent per month compounded monthly, from March 27, 2002.

EVIDENCE AND ANALYSIS:

Background:

I find that the Applicant, Zahra Garouspour, was involved in a motor vehicle accident on November 8, 2001. At the time of the accident she was 46 years old. She was hit by a slow moving Jeep making a left turn as she crossed the intersection of Yonge and Steeles to catch a bus. The car struck her left thigh, throwing her onto its hood. She then fell onto the road on her back.

The driver offered to take her to the hospital. However, she experienced no immediate pain, and asked to be taken home. When she got home, she noticed bruises and some bleeding on both elbows, her right hip and her left knee. After putting ice on her bruises, she found it difficult to sleep that night.

The next morning she went to her work as a senior verification officer at the Canadian Imperial Bank of Commerce ("CIBC"). However, after a few hours she started to experience pain, and called her husband to pick her up. She then went to the hospital, where she was x-rayed. There were no broken bones, so she went home. The doctor at the hospital gave her Tylenol 3 for the pain. On November 12, 2001, Mrs. Garouspour saw her family doctor, Dr. Carol Silverstein, who advised her to stay home, use ice packs and take Tylenol 3.

Mrs. Garouspour took a week of sick leave from her job at CIBC, and then used some vacation days before returning to work approximately two weeks later. She testified that she had worked at CIBC for 15 years. Despite this, CIBC was doing some downsizing at the time, and she was concerned that if she did not return to work, she risked losing her job. She stated that she returned to full-time hours of 6:00 a.m. to 2:00 p.m. Her job entailed sitting at a computer ensuring that documents met certain standards.

Around the same time, Mrs. Garouspour returned to her part-time job as a retailer in the children's section of the Bay. She generally earned extra money working there three evenings per week from 5:00 or 6:00 p.m. to 9:00 p.m. and on weekends.

Mrs. Garouspour testified that on the recommendation of a friend, she received treatment from Dr. Komeilinejad, a chiropractor. Pembridge paid for most of the first two treatment plans, and declined to pay for the subsequent two treatment plans. As a result, Mrs. Garouspour attended a Medical Rehabilitation assessment at a Designated Assessment Centre ("DAC"). Pembridge paid for some housekeeping assistance for Mrs. Garouspour, but declined to pay for the total amount that she claimed. Pembridge also paid $1,100 for an In-Home assessment performed by Rosemount Medical Assessment Centre on August 8, 2002, but declined to pay for a Functional Capacity Evaluation ("FCE") performed at the same facility on the same day. The parties were unable to resolve their disputes through mediation, and Mrs. Garouspour applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Credibility:

As proven by her heavy work schedule and speedy return to work, I find that Mrs. Garouspour is a very hard working, motivated and independent individual.

Pembridge attacked Mrs. Garouspour's credibility. It alleges that the testimony of Mrs. Garouspour was frequently inconsistent and contradictory. It states that she told the DAC assessors at her Medical Rehabilitation DAC that she did not return to her part-time work for three months after the accident. The DAC report states at page 10 that:

She did not return to her part-time employment at The Bay for approximately 3 months. She advised that she was back at both jobs by March 5, 2002.

However, during the arbitration, she admitted the accuracy of a letter from the Bay dated June 21, 2004, which showed a return to her part-time work on November 25, 2001. On the other hand, I note that aside from the very busy pre-Christmas period from November 25 to December 15, 2001, her part-time hours were greatly reduced until March 3, 2002.

Pembridge points out that the clinical notes and records of Mrs. Garouspour's family doctor, Dr. Silverstein, state on December 3, 2001 that Mrs. Garouspour "saw a lawyer last Monday. Lawyer suggested-chiropractor... Dr. Komeilinejad ..."

Mrs. Garouspour testified that she visited her chiropractor, Dr. Komeilinejad, on the advice of a friend. On cross-examination, Mrs. Garouspour stated that Mr. Ismaeli was her lawyer [paralegal], but that he did not tell her to go to a chiropractor. When confronted with Dr. Silverstein's note, Mrs. Garouspour's response was "Does it matter how I got to the chiropractor?" I also note that Mr. Ismaeli and Dr. Komeilinejad both had offices at that time on the second floor of the same office building in North York.

Mrs. Garouspour may not have been deliberately attempting to give misleading testimony. It may not matter how she got to the chiropractor. What does matter, however, is that she may have been inaccurate about how she got there. This gives rise to a concern that she may be inaccurate in other areas of her testimony, or at the very least, testified in a manner which she believed would advance her case.

Pembridge also questioned Mrs. Garouspour's credibility around her claim for a housekeeping benefit. On January 17, 2002, Mrs. Garouspour gave a signed statement (the "Statement ") to Ms. Bonnie McLaughlin, a representative of Pembridge. In the Statement, Mrs. Garouspour says that a lady came to help her with housekeeping one to three days per week. She said that she was no longer getting any housekeeping assistance from her, and that she had not had any housekeeping assistance since the end of December of 2001. Mrs. Garouspour also indicated in the Statement that she did not know the name of the lady who provided the housekeeping service. At the hearing, Mrs. Garouspour testified that she still was not able do housekeeping, and that she had help after the accident for one to three times per week. She was not able to explain a form relating to housekeeping expenses that had been submitted to Pembridge on her behalf that indicated that someone named Farah had provided housekeeping assistance to her every day for the month of January 2002. I find that this form significantly reduced the credibility of her claim for a housekeeping benefit, (as well as her overall credibility).

As part of her Reply evidence, Mrs. Garouspour submitted two letters allegedly sent to Pembridge relating to her employment with the Bay. The first letter dated December 17, 2001 from her representative, Mr. Ismaeli, to Pembridge stated that:

Please be advised that my client, Zahra Garouspour returned to part-time work on modified bases [sic] at the Bay as of November 25, 2001. Further information will be provided to Pembridge Insurance Company....

The second letter dated December 25, 2001 from her representative, Mr. Ismaeli, to Pembridge stated that:

Please be advised that my client, Zahra Garrouspour [sic] is off work as of December 15, 2001. Your prompt response to this matter is greatly appreciated....

After a detailed review of its records, Pembridge could not find any such letters, purportedly sent to advise Pembridge that Mrs. Garouspour had returned to, and then ceased her part-time work. There are a number of concerns about these letters, besides the fact that Pembridge could not find them. The first letter which indicates that Mrs. Garouspour has returned to her part-time work is dated two days after she had actually ceased her part-time work. The second letter is dated Christmas day, which I find unlikely. In addition, they were submitted in Reply evidence to prove that Mrs. Garouspour had advised Pembridge that she had returned to her part-time work at the Bay. I find it more likely than not that these letters were manufactured after the fact to bolster Mrs. Garouspour's case at the hearing, and were never sent to Pembridge. In any event, Mrs. Garouspour received income replacement benefits from Pembridge during November and December of 2001, even though she had returned to both her pre-accident jobs.

Income replacement benefits are not in dispute in this arbitration. However, manufacturing evidence is a very serious breach of ethical conduct, which I find causes me to doubt the veracity of Mrs. Garouspour's oral testimony.

Some of the concerns I have raised (such as the letters I found that Pembridge did not receive, and the housekeeping invoice which showed Mrs. Garouspour receiving housekeeping assistance every day for the month of January) may have been due to the actions of Mrs. Garouspour's representative, Mr. Ismaeli. These actions may have occurred without her express or implied consent, and perhaps even without her prior knowledge. I do not know.

This raises the question of whether a party should be held responsible for the actions of her representative. Simply put, the law of agency dictates that a principal is liable for the actions of its agent, in most circumstances. In this case, Mrs. Garouspour is the principal and Mr. Ismaeli is her agent. Therefore, she may be considered to be liable for his actions undertaken on her behalf.

The overall effect is that Mrs. Garouspour's arbitration was tarnished by actions in which she may not have been directly involved. By choosing Mr. Ismaeli as her representative, she placed her faith in him and is left with the consequences. Accordingly, I find that Mrs. Garouspour's credibility in this case has been affected in a negative way by the concerns I have outlined above. Consequently, it affects the weight I can give to her evidence with respect to her claims for various benefits.

Medical Benefit:

Mrs. Garouspour seeks a medical benefit for chiropractic treatment by Dr. R.F. Komeilinejad. She alleges that the current outstanding amount is $3,267.50. Pursuant to section 14 of the Schedule, in order to be entitled to a medical benefit, the onus is on Mrs. Garouspour to prove that she sustained an impairment as a result of a motor vehicle accident. Pembridge does not dispute that. Mrs. Garouspour must also prove that the chiropractic services she received from Dr. Komeilinejad were reasonable and necessary expenses she incurred as a result of the accident.

On December 3, 2002, Mrs. Garouspour obtained a disability certificate from her family physician, Dr. Silverstein. Dr. Silverstein's primary diagnosis was myofascial spasm and strain - lumbar, trapezius. She also indicates that Mrs. Garouspour suffered a Grade II whiplash. She prescribes medication and permits her to return to work "as long as she is frequently changing position."

On February 12, 2002, Mrs. Garouspour obtained a second disability certificate from Dr. Silverstein. Dr. Silverstein's primary diagnosis was myofascial strain, left-sided spine and trapezius. She again indicates that Mrs. Garouspour suffered a Grade II whiplash. Dr. Silverstein prescribes further medication, and states that Mrs. Garouspour can return to work, but not to the part-time job at the Bay just yet, due to its prolonged standing and lifting demands. She also states that Mrs. Garouspour missed two to three weeks of her full-time job because of pain, but has been full-time for at least six weeks. Dr. Silverstein did not recommend chiropractic treatment in either of her disability certificates. However, as indicated above, her clinical notes and records dated December 3, 2001 indicate a reference to Dr. Komeilinejad, the chiropractor who treated Mrs. Garouspour.

Dr. Kameilinejad, a chiropractor, prepared four treatment plans. The first treatment plan, dated November 26, 2001, was for six weeks of chiropractic and rehabilitation treatment for a total cost of $2,948. Her invoice dated January 2002² submits $3,123 of charges to Pembridge. Notations on the invoice indicate that Pembridge paid $2,525 in relation to this account on February 5, 2002.

The second treatment plan, dated January 4, 2002 was for chiropractic and rehabilitation treatment for a further six weeks for a total amount of $2,412. Dr. Komeilinejad's invoice dated February 18, 2002 submits $1,950 of charges to Pembridge. Notations on the invoice indicate that Pembridge paid $1,875 in relation to this account on March 8, 2002.

Mrs. Garouspour submits that Pembridge approved both the first and second treatment plans on January 22, 2002. Pembridge did not tender any evidence that refuted this submission.

Dr. Kameilinejad's third and fourth treatment plans dated February 18, 2002 and April 1, 2002 respectively, were both for chiropractic and rehabilitation treatment in the amount of $1,608. They were each to last a further six weeks.

The chiropractic and rehabilitation treatment that Dr. Komeilinejad recommended in the last two treatment plans included adjustments, neuromuscular retraining, cold packs, ultrasound, TENS, PMF, electrical current therapy, active supervised exercise and rehabilitation and functional restoration with cardiovascular retraining

On March 22, 2002, Pembridge wrote to the Mrs. Garouspour denying the February 18, 2002 treatment plan of Dr. Kameilinejad. Pembridge also advised that they required a DAC Assessment to determine if this treatment plan was reasonable and necessary. On April 24, 2002, Pembridge wrote to Mrs. Garouspour denying the April 1, 2002 treatment plan of Dr. Kameilinejad since the previous treatment plan dated February 18, 2002 was also denied.

On May 8, 2002, Mrs. Garouspour attended at Assessment Works of North York Inc. for a Medical Rehabilitation DAC Assessment. At the DAC, Mrs. Garouspour was assessed by a chiropractor and a physiotherapist who each did a thorough assessment of her complaints, her history and her current physical condition.

The assessors concluded that the February 18, 2002 treatment plan was only partially reasonable and necessary. They found that at most, up to six additional sessions to wean Mrs. Garouspour from therapy and to help facilitate her return to work at the Bay would have been reasonable at a cost of $70 per session. They further concluded that the April 1, 2002 treatment plan was neither reasonable nor necessary. They stated that Mrs. Garouspour had had a sufficient course of formal therapy by that date and was able to continue with her self-directed exercise program independently.

As a result of the Medical Rehabilitation DAC, Pembridge paid $420 to Mrs. Garouspour to cover the cost of six additional treatments at a cost of $70 per session.

Mrs. Garouspour testified that the treatment provided by Dr. Komeilinejad, eased her pain so that she could work. She said that she stopped treatment because Pembridge was no longer paying for it. There was no evidence of the date that this occurred. She also stated that she preferred to do exercises at Dr. Komeilinejad's office because she was guiding her. However, she did have access to a pool and exercise equipment, which allowed her to exercise at home.

Mrs. Garouspour was referred by her representative to an FCE at Rosemount Medical Assessment Centre ("Rosemount"). She stated that the FCE dated August 8, 2002 prepared by Rosemount supported her claim for chiropractic and rehabilitation treatment. After a page of graphs evaluating Mrs. Garouspour's range of spinal and extremity motion, the kinesiologist who wrote the report concludes as follows:

RECOMMENDATIONS

Based on the assessment of Ms. Garrouspour [sic] conducted on August 8, 2002 it is recommended that the patient continue with her treatment plan to return him [sic] to pre-MVA levels of functioning. It is recommended that this treatment plan continue until such time as he [sic] is re-evaluated by his [sic] treating practitioner to determine further course of treatment.

I find that these Recommendations have very limited, if any, value. They do not specify to which of Dr. Komeilinejad's four treatment plans they refer. In fact, they do not even refer to Dr. Komeilinejad. It appears to simply be a bald assertion with little, if any, basis aside from some range of motion statistics. I also note that the author of the report carelessly mixes up the gender of the Applicant.

The remainder of the 20 pages of the report deals with Mrs. Garouspour's functional abilities compared to corresponding job levels. I find this portion of the report to be of no value whatsoever given that Mrs. Garouspour had returned to both her full-time and part-time work approximately five months before. It also made no attempt to deal with any problems Mrs. Garouspour may have had with working. For example, how to deal with any pain she may have been experiencing.

I note that Dr. Komeilinejad did not testify regarding whether the remainder of the third treatment plan and the fourth treatment plan were reasonable or necessary.

In addition to the reasons stated above, I find the conclusions of the Medical Rehabilitation DAC more persuasive than the FCE. The DAC thoughtfully considered Mrs. Garouspour's condition, and found a weaning off of treatment was appropriate. I find that the conclusions of the FCE were not persuasive, since they were simply based on some range of motion percentages, and little else. Mrs. Garouspour, in her evidence, states that she was using the pool and exercise room in her condominium in order to perform exercises that she needed. Accordingly, I find that the medical benefit that Mrs. Garouspour is claiming for Dr. Komeilinejad's additional treatment in the third and fourth treatment plans is not reasonable or necessary.

Mrs. Garouspour alleges in her submissions that Pembridge only partially paid for the treatment set out in the first and second treatment plans. Pembridge argues that the evidence at the arbitration was not sufficient to calculate any quantum of medical benefits. I disagree. The invoice submitted with respect to the first treatment plan seeks payment of $3,123. I also note that the first treatment plan had an estimated cost of $2,948. A notation on the invoice indicates that Pembridge paid $2,525 on February 5, 2002. This leaves a balance of $598 outstanding on this invoice.

The invoice submitted with respect to the second treatment plan seeks payment of $1,950. This treatment plan had an estimated cost of $2,412. A notation on the invoice indicates that Pembridge paid $1,875 on March 8, 2002, with respect to this invoice. This leaves a balance of $75 outstanding on this invoice. Taken together the amount outstanding on the two invoices relating to the first two treatment plans totals $673.

Pembridge did not provide any submissions as to why these invoices were not paid in full. The first and second treatment plans were not subjected to a DAC assessment. Mrs. Garouspour submitted that they had been approved, and I find, in the absence of a DAC assessment, that Pembridge had approved them. I note that the Medical Rehabilitation DAC assessment for the third and fourth treatment plans found that some of the proposed treatment set out in the third treatment plan was reasonable and necessary. Therefore, I feel confident in finding that all of the treatment provided in connection with the first and second treatment plans was reasonable and necessary.

Housekeeping

Mrs. Garouspour claims payment for housekeeping and home maintenance services for which Pembridge has not previously paid. Section 22 of the Schedule states that the insurer shall pay for reasonable and necessary additional expenses incurred by or on behalf of an insured person for housekeeping and home maintenance services. This applies where, as a result of the accident, the insured person sustains an impairment that results in a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident.

In order to meet this test Mrs. Garouspour must prove on a balance of probabilities that she incurred reasonable and necessary additional expenses for housekeeping and home maintenance as a result of the accident. She must also establish that as a result of the accident she sustained an impairment that resulted in a substantial inability to perform the housekeeping and home maintenance services she normally performed before the accident.

The parties agreed that starting December 1, 2001, Pembridge paid for five weeks of housekeeping and home maintenance services at the rate of $75 per week, for a total of $375.

At the time of the accident, Mrs. Garouspour lived in a two-bedroom apartment with her husband and two children, a son aged 21, and a daughter aged 18. In the signed Statement dated January 17, 2002 referred to above, Mrs. Garouspour said that, "I[n] [sic] my household, all four of us are responsible for housekeeping." This is not surprising given the ages of her children, and the number of hours she was working.

At the hearing, she testified that prior to the accident, all four of them were working. Her son took the garbage to the chute. Her daughter made her own bed. She testified that she did everything else, including laundry, ironing, vacuuming, shopping and cooking.

Dr. Silverstein, in the disability certificate dated December 3, 2001, described the housekeeping and home maintenance services that Mrs. Garouspour could not perform as follows:

laundry - unable to climb the stairs to get to laundry machines vacuum - lower back aggravated by activity of lugging vacuum - pain meal preparation - gets too depressed

In a disability certificate dated February 12, 2002, Dr Silverstein described housekeeping and home maintenance services that Mrs. Garouspour could not perform then as follows:

vacuum - too heavy to carry around and sore to bend laundry - difficult to carry the baskets

shopping - unable to carry the groceries as per previous - (no car) changing bed sheets - unable to perform re pain with reaching and bending

Pembridge argues that these comments were based solely on Mrs. Garouspour's subjective comments.

Mrs. Garouspour testified that after the accident she was not able to do housework, due to pain in her neck, back, knee, left shoulder and headaches. There was little evidence led as to any housekeeping assistance provided by her family. Dr. Laufer, chiropractor at the Medical Rehabilitation DAC, noted in her report that on May 8, 2002 Mrs. Garouspour told her that presently, her children are assisting her with heavier tasks and she can complete dusting and other light activities. No family members testified at the hearing.

In her signed Statement dated January 17, 2002, Mrs. Garouspour said that:

For about 4-5 weeks I had a lady come to help me with housekeeping. My condominium is two levels. The lady who helped me did vacuuming, laundry, dusting. She did everything except for cooking. I do not remember her name right now. My friend Sophie recommended this lady.

This lady came anywhere 1 to 3 days a week. I have not paid her yet. I have made no agreement with her with regards to what I will pay her. I am no longer getting any help from her. I have not had any assistance since the end of December. I have had no help since the whole month of January.

At the hearing, Mrs. Garouspour testified that after the accident she could not do housework. She got "someone" to come and help her. She paid her "whatever." This person shopped, vacuumed, cleaned, did laundry, and cleaned bathrooms. Mrs. Garouspour testified that this person did everything except cooking. In her testimony Mrs. Garouspour stated that Farah was still helping her on the day (January 17, 2002) that she was interviewed by Ms. McLaughlin. However, this is difficult to believe. She would have had no reason to tell Ms. McLaughlin that she had no help, when she was still having help. In addition, I am of the view that her memory of what was occurring would have been fresher in January of 2002 than years later when the hearing took place. Accordingly, I find that Farah was no longer assisting Mrs. Garouspour as of January 1, 2002. In addition, I have expressed concerns regarding Mrs. Garouspour's credibility earlier in this decision.

As indicated previously, Pembridge produced a form sent to them by Mrs. Garouspour's representative. It sets out Housekeeping Expenses allegedly submitted and signed by Farah for work she is claimed to have performed for Mrs. Garouspour for the month of January 2002. It gives an address and telephone number for her, but no last name. It indicates that she worked every day for the month of January. It also shows that she worked a total of 15 hours per week at the rate of $100 per week. Her duties performed include laundry/iron, vacuuming, washroom, shopping, kitchen cleaning, and sweeping/dusting. Farah's current whereabouts are unknown. She did not testify at the hearing

Mrs. Garouspour said in her Statement that Farah came one to three days per week. Mrs. Garouspour admitted on cross-examination that Farah was not there every day. I find it suspect that every day during the month of January is checked off on the form as a day worked for Farah. Given my finding above, that Mrs. Garouspour did not receive housekeeping assistance from Farah during the month of January 2002, I find it appropriate to give this form no weight. Mrs. Garouspour did not produce any other documents to substantiate the housekeeping assistance she alleges she received.

Although there was no evidence in this regard at the hearing, Mrs. Garouspour stated in her written submissions that Rustana Korytko continued the housekeeping services as of June 1, 2002. Since there was no oral or written evidence to support it, I give this submission no weight.

Although Mrs. Garouspour may have felt that she needed more housekeeping assistance than was provided to her, I find that she has failed to prove, on a balance of probabilities, with any specificity, that she needed or received any help from a housekeeper or her family members other than what the Insurer has already paid for. She might have more success in meeting her onus of proof had she had her housekeeper(s) or her family members testify. I also note that Mrs. Garouspour obtained and Pembridge paid $1,100 for an In-Home Assessment prepared by Rosemount. It is of interest that Mrs. Garouspour did not tender this report as evidence in her claim for a housekeeping and home maintenance benefit.

Functional Capacity Evaluation

Pursuant to section 24 of the Schedule, an insurer is obligated to pay for all reasonable expenses incurred by an insured person for the purpose of this Regulation in obtaining and attending an examination or assessment. The section sets out two requirements. The expenses must be reasonable, and they must be for the purpose of this Regulation.

Rosemount conducted an FCE of Mrs. Garouspour on August 8, 2002. Pembridge denied payment for this report, claimed in the amount of $1,100. The report has a printed title, which states FUNCTIONAL CAPACITY EVALUATION. The beginning of the report sets out under the heading, PURPOSE OF ASSESSMENT, the following:

Ms. Garrouspour [sic] was referred for a Functional Abilities Evaluation (FAE) [sic] following a motor vehicle accident on November 8, 2001. The FAE assesses the patient's handgrip strength; pinch grip strength, as well as the range of motion for affected joints. All tests are performed using the ARCON Functional Testing System, wherefrom the procedures are standardized, the collected data is automated, and the results are compared to recognized population norms in order to determine the degree of impairment.

The report then evaluates Mrs. Garouspour's cervical, lumbar and shoulder ranges of motion, comparing them to population norms. It indicates that Mrs.Garouspour's various ranges of motion showed remarkable, significant or slight impairment when compared to population norms.

As I set out above, the report then recommends that Mrs. Garouspour "continue with her treatment plan to return him [sic] to pre-MVA levels of functioning." It also recommends that "this treatment plan continue until such time as he [sic] is re-evaluated by his [sic] treating practitioner to determine further course of treatment."

As I also indicated above, the RECOMMENDATIONS do not set out which of the four treatment plans to which it refers. Aside from returning Mrs. Garouspour to her pre-accident levels of functioning, it does not address the other short-term or long-term goals of the treatment plans, the modalities recommended or the anticipated benefits. The assessor's bald assertions are not persuasive.

In addition, as I indicated earlier, the remaining 20 pages of the report deal with Mrs. Garouspour's ability to return to work, despite her return to work some five months earlier, (within a few weeks of the accident for her full-time work).

Mrs. Garouspour argues that this report addresses the conclusions of the Medical Rehabilitation DAC assessment. I found, above, that it did not do so. Further, she states that her legal representative referred her for this evaluation to assess her condition and evaluate her progress from the date of the accident.

It may have been reasonable for Mrs. Garouspour to obtain a report for these purposes, as they deal with issues raised by the Schedule. However, I find that the Rosemount report did not fulfil these purposes in any sort of meaningful way.

Mrs. Garouspour did not explain why an FCE by a kinesiologist would be a reasonable and persuasive way to address a DAC assessment prepared by a chiropractor and a physiotherapist, regarding treatment plans proposed by a chiropractor. The author of the report did not testify. Mrs. Garouspour also did not attempt to use the report to support her claim for housekeeping.

I conclude that it was not reasonable for Mrs. Garouspour to obtain an FCE when she had returned to work months earlier. Accordingly, Pembridge is not liable to pay for it.

Interest

The parties did not make any submissions regarding the payment of interest for overdue benefits. The only benefits which I found to be outstanding were balances of $598 and $75, respectively on the invoices relating to the first and second treatment plans of Dr. Komeilinejad.

Subsection 46(2) of the Schedule provides that the insurer shall pay interest on the overdue amount for each day the amount is overdue from the date the amount became overdue at the rate of 2 percent per month compounded monthly. Subsection 38(18) of the Schedule requires an insurer to pay the expenses of an application for a medical benefit within 30 days after receiving the application.

The invoice for the first treatment plan does not set out which date in January 2002 it was prepared. Pembridge paid for the majority of it on February 5, 2002. Under these circumstances, I find that the fairest date for me to pick as its preparation date is the middle of the month, which is January 16, 2002. I am prepared to allow seven days for the delivery of the invoice to Pembridge by regular mail, pursuant to Rules 7.3 and 8.1(b) of the Dispute Resolution Practice Code, (Fourth Edition, Updated October 2003) which would bring us to January 23, 2002. Thirty days from this date is February 22, 2002. Accordingly, I find that Mrs. Garouspour is entitled to interest on the medical benefit outstanding of $598, pursuant to the first treatment plan of Dr. Komeilinejad, from February 22, 2002, at the rate of 2 per cent per month compounded monthly.

With respect to the second treatment plan of Dr. Komeilinejad, the date of the invoice is February 18, 2002. Allowing seven days for delivery by regular mail, as set out above, brings the date to February 25, 2002. Thirty days from this date is March 27, 2002. Accordingly, I find that that Mrs. Garouspour is entitled to interest on the medical benefit outstanding of $75 pursuant to the second treatment plan of Dr. Komeilinejad, from March 27, 2002, at the rate of 2 per cent per month compounded monthly.

EXPENSES:

I would encourage the parties to resolve the issue of expenses among themselves. If they are unable to do so, they may apply for an expense hearing before me, pursuant to the process outlined in the Dispute Resolution Practice Code.

October 20, 2005

Anne Sone Arbitrator

Date

Financial Services Commission of Ontario

Commission des services financiers de l’Ontario